Bearing Drift has been given an exclusive first peek at the resolution calling for the impeachment of Attorney General Mark Herring. At least two members of the House of Delegates are currently considering carrying the resolution, and there is a strong possibility it will be introduced in the days to come.

THIS IS A DRAFT COPY ONLY.

WHEREAS, Virginia Attorney General Mark Herring has refused to preserve, protect and defend a provision of the Bill of Rights of the Virginia Constitution;

WHEREAS, the Virginia Constitution is paramount law that establishes, constitutes and governs the government of the Commonwealth of Virginia, including creating the elected, constitutional office of Attorney General;

WHEREAS, General Herring has chosen to disregard that paramount law that governs his office, and is violating his oath of office to preserve, protect and defend the Constitution, which constitute a neglect of duty;

WHEREAS, the Bill of Rights in Article I of the Virginia Constitution is “a DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers, which rights do pertain to them and their posterity, as the basis and foundation of government;”

WHEREAS, Section 2 of Article I, “People the source of power,” states “That all power is vested in, and consequently derived from, the people, that magistrates are their trustees and servants, and at all times amenable to them;”

WHEREAS, by refusing to enforce one of the rights in the Virginia Bill of Rights, General Herring has renounced his oath of office, which will set dangerous precedent that he may refuse to enforce the Constitution, including the rights articulated in the Bill of Rights such as: Section 6 Free elections, consent of governed; Section 7 Laws should not be suspended; Section 8 Criminal prosecutions (“a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, and to call for evidence in his favor, and he shall enjoy the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers, nor be compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same offense”); Section 8-A Rights of victims of crime; Section 9 Prohibition of excessive bail and fines, cruel and unusual punishment, suspension of habeas corpus, bills of attainder, and ex post facto laws; Section 10 General warrants of search or seizure prohibited; Section 11 Due process of law; obligation of contracts; taking or damaging of private property; prohibited discrimination; jury trial in civil cases; and Section 12 Freedom of speech and of the press; right peaceably to assemble, and to petition;

WHEREAS, the nature of General Herring’s neglect of duty is not only unprecedented, but is a danger to all Virginians because without adherence to the paramount law that governs the government of Virginia, all rights of Virginians are at the mercy of government unconstrained by the rule of law;

WHEREAS, Article IV, Section 17 of the Constitution states that the Attorney General “offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments;”

IT IS THEREFORE RESOLVED that the House of Delegates should fulfill its constitutional duty by commencing the impeachment of Virginia Attorney General Mark Herring.

The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments. When sitting for that purpose, the senators shall be on oath or affirmation, and no person shall be convicted without the concurrence of two-thirds of the senators present. Judgment in case of impeachment shall not extend further than removal from office and disqualification to hold and enjoy any office of honor, trust, or profit under the Commonwealth; but the person convicted shall nevertheless be subject to indictment, trial, judgment, and punishment according to law. The Senate may sit during the recess of the General Assembly for the trial of impeachments.

Once impeached, the case is then taken to the Virginia Senate, where two-thirds of the body must vote to remove the offending member. Should the Virginia Senate vote for impeachment, the office is vacated and a new attorney general is appointed.

Regardless as to whether or not the articles of impeachment fail in either the House or the Senate, there is already a movement to recall Herring afoot in the event the General Assembly fails in its duties. That is how serious a constitutional crisis Herring has now kicked off, and the repercussions are still being felt elsewhere. Expect conservative talk radio and other news outlets to give due attention to this.

Beyond that, each and every delegate and state senator is keenly aware that 2015 is right around the corner. If Herring wanted to throw away the Democratic ascendancy in one moment, he did a masterful job.

He (Herring) is refusing to defend the State’s Constitutional Amendment that defines marriage as a union between one man and one woman. Not only is he refusing to defend it, he is filing a brief urging the Federal Courts to strike the amendment down.

The job of the Attorney General is to represent the people of the State of Virginia. The marriage amendment to the Virginia Constitution was approved by a huge majority of Virginia voters. It is not the place of the Attorney General to overrule the rule of the people.

Told ya it wouldn’t be long before the nationals organizations take notice.

It’s critically important that Republicans notate this being done as for legal/precedent reasons, rather than being a single-issue cause.

Jay Hughes

DJ….you’re not a pundit….you’re not an expert….you’ve never run for office….you’ve never done anything that would make you qualified to comment on any of this stuff…so shut the fuck up and make sure your customer has a cold drink in front of him.

http://www.brianschoeneman.org/ Brian W. Schoeneman

And people say I’m an arrogant ass…

Donna Martin

If the shoe fits!!! LOL

mjritter

No, you just did a great job in the last election being fair and impartial – even though many republicans thought otherwise (well at least a few thought you should have been partial to republicans)

jonhartz

Sounds like Jay has a crush on DJ…

Stephen Spiker

I promise this was not me…

Manny

There is nothing in the draft resolution that indicates this has anything to do with a ‘single issue’. Herring has taken the unprecedented step of advocating against Virginia law (not simply refusing to defend, but actively opposing) which requires this unprecedented response.

DavidH

I don’t think I see any difference (other than politics) between announcing publicly what your belief is and stepping out of a case, or filing a brief stating what your position is.

And this is hardly unprecedented, as you’d know if you actually read Herring’s brief.

mjritter

That is not correct. It is not unprecedented at all. Cuch and Kilgore each refused to defend laws they thought were unconstitutional. And as we see time and time again, courts with both conservative and liberal judges striking these absurd bans down.

Muggs37

But David H & mjritter – you fail to mention that neither of them took up the banner for the individual suing the Commonwealth by writing a brief against the Commonwealth urging the federal judge to declare it unconstitutional. I live in Virginia. There are NO precedents for this as much as you would like to believe it is so. It isn’t.

C. Richard

Nice

http://redstate.com/ midwestconservative

One is Bob Marshall, so who is the other Delegate?

Cleveland Steamer

Well no surprise there. So, Marshall is going to patron a bill that he knows is doomed for failure. He will take up taxpayers time and waste it on political theater. And this guy is supposedly a conservative and a staunch defender of rights? LAUGHABLE!

How about this – impeach Marshall.

Manny

Inevitable failure is irrelevant. Herring has taken an unprecedented step and it would be irresponsible for the legislature to simply acquiesce to his power grab without challenging it.

Cleveland Steamer

How lucky are those delegates. I mean, if I was ineffective and not productive at my job, I would surely be unemployed in short order.

Old-Timer

“Inevitable failure is irrelevant.” Perhaps that could be embroidered in velvet, and hung above the podium at the next convention.

mjritter

You’re a lemming.. It’s far from unprecedented.

Muggs37

You’re the lemming mjritter – it IS unprecedented. If you think it isn’t, name an instance where it isn’t. What is unprecedented is that he is joining in suing the state and the citizens who voted for the amendment that he is supposed to be defending. It’s called Rule of Law and it’s also called malfeasance.

Steve

Cleveland dreamer, Mr. Marshall represents me. Everytime I have contacted him whether I agreed with him or not he has listen to me and treated me with respect. If you have any charges to impeach Mr. Marshall bring them. Facts are Mr. Herring should be impeached and I have written and I encourage other to write to their representitive to do likewise.

Downstater

Great. I’m glad someone has a backbone. Of course getting it through the Senate is another matter, but we are going to cause as many problems for the new governor as possible. I hope this makes national news, and not just on Fox. So much for the press all lauding the new administration as “governing from the center”.

mjritter

It’s people like you that ARE THE PROBLEM. The fact is, the governor has nothing to so with this. He has no authority over what the AG does. Yes this will make the news on all channels. My bet is the judge will side with the plaintiffs. Reading Herring’s brief and the decisions of judges in OK, OH, and UT, makes for a strong case for marriage equality.

Muggs37

Wrong again mjritter – it doesn’t matter who the judge sides with – that isn’t the point – it’s whose side Herring is supposed to be defending and it’s not the plaintiffs. Wrong is wrong; stop trying to make it right.

Jay Hughes

hahahahahahahaahahhahahahahaha!!!!!!

Colin B.

This will be the first of many attempts by Attorney General Herring and Lt. Gov. Northam to circumnavigate the rule of law in anticipation of a nasty primary or convention for the 2017 gubernatorial nomination.

Greg Letiecq

Snooze. Like the Dick Saslaw-lead Senate would ever vote by 2/3 margin to remove a Democrat from office, regardless of what they have done…

DJRippert

With all due respect, that’s not the point. A lot of independents are developing a very jaundiced view of King Barack I’s rule by executive fiat. A George Washington University professor recently said, “”President Obama meets every definition of an imperial presidency,” says Turley, who notes that he voted for Obama. “He is the president that Richard Nixon always wanted to be.”

Now comes Mark Herring. Less than a month into office Herring actively opposes a Virginia constitutional amendment (which he once supported) that was passed twice by the General Assembly and voted into law by a substantial majority of Virginians in 2006.

Is this the “New Democratic Party’s” version of democracy? Ignore oaths of office, constitutions and laws passed by duly elected legislatures? If so, the sooner that approach is brought into the full light of day the sooner we can take action to neuter those who would do this.

An impeachment proceeding will properly focus public debate on the role of the executive branch. It will force Democrats to defend obvious over-reach by one of their recently elected officials. It will cause independents to wonder just how far Democratic candidates will take their “nouveau imperialism”.

I’d really like to hear Mark Warner defend Mark Herring in the run up to this November’s election.

Win, lose or draw – this is a debate that needs to be conducted.

As an aside, I oppose Virginia’s constitutional amendment on marriage. I voted against the amendment when it was on the ballot and would vote to repeal the amendment. However, that does not give megalomaniacs like Mark Herring the right to ignore the law. The ends do not justify the means.

Not only should Herring face impeachment proceedings he should face disbarment for failing to zealously defend his client – The Commonwealth of Virginia.

jkld

The oath of office for the Attorney General of Virginia — which Herring took earlier this month — includes a solemn vows first to “support the constitution of the United States” and second to support “the constitution of the Commonwealth of Virginia.” Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions — so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend.

Moreover, two recent Republican Attorneys General of Virginia — both Family Foundation favorites who had the support of Howell and Marshall — also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation’s Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.

Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.” That pledge did not stop the Family Foundation and from frequently hosting Cuccinelli at events, accepting his sponsorship, and cheer-leading for his political career.

DJRippert

All of which would be germane if the US Supreme Court or the 4th District Court of Appeals had found Virginia’s marriage amendment unconstitutional – something that neither has done.

In fact, the US Supreme Court has not found any state ban on gay marriage unconstitutional. In Windsor, the US Supreme Court found that the federal government did not have any compelling interest in making marriage a union between one man and one woman. It did not address the equal protection clause of the 14th Amendment to the US Constitution.

Mark Herring is imagining things. He has no oath to respect US Supreme Court decisions which may occur in the future but have not occurred yet.

The US Supreme Court needs to rule on the equal protection clause (for some state) before it would be reasonable for Herring to infer that Virginia’s amendment is unconstitutional.

jkld

It is a building of cases in the Federal courts. Currently, there are several cases, not only this one, but the one that recently overturned the OK Constutional Amendment banning gay marriage. The fed. judge stayed his ruling so that the case could go thru the courts, just as this one is doing as well.
Herring has the right, and the precedence to take the action he is doing.

DJRippert

You are wrong. Herring may one day be able to claim that he was following precedent in this action but that day is not today. The “building of cases in Federal courts” is a far cry from precedent. It is also hopelessly underweight when compared to an amendment which was passed twice by the Virginia General Assembly and then passed again by the voters at large.

Mark Herring is not a surrogate for the US Supreme Court no matter how much his overly inflated ego may convince him otherwise.

jkld

He has the right to do what he’s doing, just as his predecessors had that right and exercised it.
BTW, why would ANYONE oppose SS marriage in the 1st place unless they advocate bigotry?

mjritter

First, where do you get that it’s unprecedented that a VA AG not defend a VA law? There are clauses in state constitutions that are clearly unconstitutional. I believe in NC there is a religious clause to hold office, which is clear violation of the US Constitution. You don’t see NC defending that. As we’ve seen after Windsor, and Scalia alluded to it, that even though Windsor dealt with Sec 3 of DOMA, the house of cards will fall. Now that almost 40% of the US population is covered by marriage equality, with more coming on board, it’s only a matter if time..

DJRippert

Please find the word “unprecedented” in my comments and point out where I made that argument.

I was as opposed to Cuccinelli’s decision to refuse to enforce McDonnell’s school takeover plan as I am opposed to Herring’s refusal to defend the Virginia Constitution.

As for it being only a matter of time … I agree completely. Which is one good reason to do this properly and not cut legal corners. I voted against the marriage amendment and I would vote to allow same sex marriage in Virginia if it were on the ballot this afternoon.

One thing that should bother everybody is Herring’s dishonesty. He had many months on the campaign trail to disclose his approach to this matter. However, he said nothing. Very disappointing. Where I come from, lying through omission is every bit as bad as lying through commission.

mjritter

But other courts have ruled such bans as being unconstitutional. The SCOTUS has ruled on at least 14 occasions that marriage is a fundamental right. In reality, as Herrings brief states, you could take out interracial marriage in Loving and substitute marriage equality.

U.S. District Judge Arenda L. Wright Allen’s decision Thursday makes Virginia the second state in the South to have a ban on gay marriages overturned. It comes the day after a similar ruling in Kentucky and following similar rulings in federal courts in Utah and Oklahoma.

Wright stayed her decision until an appeals court rules, meaning that gay couples will not be able to marry in the state immediately.

But the case is now in the Federal pipeline, as is those of UT, OK, and others.
It is not a matter of IF the SCOTUS rules that a ban is unconstitutional, but simply when. And with so many cases with the same rulings under the 14th Amendment, that ‘when” is coming VERY VERY soon.

DJRippert

I have never disagreed that it’s a matter of when, not if. However, Judge Allen did the right thing – stayed her ruling until the court of appeals can rule. Herring should follow the same philosophy. As the Attorney General of Virginia he cannot declare himself a fortune teller and act as if future court rulings which have not yet happened have actually occurred.

We have a court hierarchy for a reason. While the appellate process may be slow it is thorough, Once completed it is pretty much final. However, until it is completed the only definitive law that Herring should be following is the Virginia Constitution.

jkld

Considering that his FIRST obligation is to the US Constitution, that’s exactly what he followed and rightfully so. The precedence was already there to do what he rightfully did.

DJRippert

When Judge Allen stayed her order she illustrated that the issue is unresolved. Once again, Mark Herring is a member of Virginia’s Executive branch. He is not a member of the judiciary. His role is to enforce the law not interpret the law. He should not enforce laws which have been determined by a court with proper jurisdiction to be unconstitutional. That has not fully happened in the matter of Virginia’s Marriage Amendment. Even a judge, who is charged with interpreting the law, has stayed her ruling pending further review by a higher court. Herring, however, has decided that he can act in lieu of that higher court as well as in lieu of the 4th District Court and in lieu of the US Supreme Court. It’s good to be king, I guess. He has effectively decided to appoint himself to the judiciary and interpret the law in lieu of the appellate courts and the US Supreme Court.

In the case of Virginia’s Marriage Amendment I personally believe it will ultimately be found to be unconstitutional by all courts with proper jurisdiction. However, until that happens it has not happened. Other than for political theater I see no reason for Mark Herring to jump the gun. What Virginia law will Mark Herring personally decide to nullify when he next appoints himself to be the equivalent of the entire state and national judiciary?

jkld

The AG’s FIRST obligation is to the US CONSTITUTION.
He rightfully executed his duty as AG and refused, as precedence had provided, to defend a law that was unconstitutional under the US CONSTITUTION.

mjritter

Herring did support the ban. However, much has changed. Many court cases including Windsor. There’s also been a paradigm shift in attitude and acceptance. The bottom line as the courts have stated over and over again, the ban was putative in nature. What’s even more compelling is that the “right” has not demonstrated effectively how the state is harmed by allowing marriage equality. As the conservative lawyer Ted Olson has stated time and time again, the SCOTUS has said on at least 14 times that marriage is a fundamental right.

DJRippert

You have your opinion. Unfortunately, you are not a justice on the US Supreme Court. Upholding the Constitution of the United States is not a license to do anything that “the courts” say to do. It is a license to understand the hierarchy of courts in the United States and respect that courts may disagree with each other. Hence, the 4th Circuit Court of Appeals and the US Supreme Court – both of which have jurisdiction over Virginia. Neither of which has ruled on the matter of Virginia’s Constitutional Amendment or on any state constitutional ban on same sex marriage.

You facts are wrong.

One more question – do you think Herring should be able to ignore the recent Virginia Constitutional amendment on the taking of private property by government for economic gain? Unlike same sex marriage, the US Supreme Court clearly ruled in Kelso that New London was within its rights to take private property for the purpose of redevelopment and enlarging the tax base.

If Fairfax County decides to condemn private property in order to allow a developer to build a new office building should Herring refuse to side with the Commonwealth of Virginia by citing his personal opinion of how Kelso applies? Or, should he defend his client and let actual judges make that decision?

Rave on. What we’ve learned from North Carolina: if Mark Herring did *exactly what they are demanding that he do*, his detractors would *still* be falsely accusing him of violating the oath and duty of his office. They would disbelieve his impartiality and his ability to vigorously represent the interests of the Marshall-Newman amendment’s proponents, and would *still* be hiring outside counsel to defend the amendment in court. From their perspective, things would be exactly the same as they are currently. This outrage is fabricated.

I’m sure you’d be outraged if the Attorney General of Colorado ( a Republican) refused to defend the laws recently past in regards to firearms.

David_Weintraub

That’s not a very strong argument. midwest. If the CO AG did a thorough review of the recently passed laws and believed them to be unconstitutional (not “believed” in the sense of personal opinion, but on the basis of actual jurisprudence), then what reason would there be for outrage? I disagreed with Cuccinelli’s legal analyses and said so. I didn’t think his legal analyses were an impeachable offense, however.

http://redstate.com/ midwestconservative

I can be outraged and still think Mr. Herring shouldn’t be impeached ( and I have stated as such elsewhere)
Quite a few people have admitted that what Mr. Herring is doing isn’t “impeachable” including Mr. Gilmore and Mr. Cuccinelli ( both former Attorney Generals)
That being said whether or not something is “impeachable” ultimately resides among the members of the House of Delegates.

David_Weintraub

Fair enough, but the topic of this post is a draft resolution calling for impeachment. So I think it reasonable to assume that is what I meant by “this outrage.”

Arlingtonvirginia

There’s a difference between not defending a law, and actively aiding the other side in litigation. That would get him disbarred in the private practice.

jkld

In the AG’s case, he has the RIGHT and precedence to do what he’s done. After all, his 2 predecessors did the same kind of thing.

Katy Clossin

Shaun Kenney should be shot and his Bearing Drift drained. We ran him off of the Fluvanna Board of Supervisors with his sorry tail between his legs. The times, they are a changin’. Let the tea partiers embarrass themselves all they want.

http://bearingdrift.com/ J.R. Hoeft

This comment is immediately being referred to proper authorities.

Katy Clossin

Go for it!

Arlingtonvirginia

Translation: I am a basement dwelling virgin using a proxy so my threats can’t be traced. Stay classy, liberal…

easyvictor

That’s what the folks who used TorMail thought also. Stay ignorant.

BeccaLeigh

Threatening to shot someone is a serious threat!!

BeccaLeigh

Of you really thought that the tea party was nothing to worry about than why to you troll pages geared towards tea partiers? Maybe you should find yourself a friend and if that doesn’t work out, just make up and imaginary friend, Leftists are good at making things up!!

Arlingtonvirginia

File an ethics complaint against him with the VA bar. There’s no doubt he violated his obligation to his client but actively aiding the other side.

jkld

Complaint would be laughed out and not even be considered.
He has the right to do what he did, as did his 2 predecessors who did similar actions.

Arlingtonvirginia

If that’s the case, ethical rules for lawyers are worthless in virginia. Why should any other lawyer follow the rules? Might as well start commingling funds if the rules only apply to some lawyers, right?

jkld

Nope – a prosecuting attorney, which the AG is as the top law enforcement attorney in VA, has the right and obligation to the US Constitution FIRST, not 2nd and the VA Constitution 2nd, not 1st. Any law he deems possibly unconstitutional he has a right NOT to defend due to that.
He is NOT the first, nor will he be the last to exercise this power.
The oath of office for the Attorney General of Virginia — which Herring took earlier this month — includes a solemn vows first to “support the constitution of the United States” and second to support “the constitution of the Commonwealth of Virginia.” Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions — so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend.

Moreover, two recent Republican Attorneys General of Virginia — both Family Foundation favorites who had the support of Howell and Marshall — also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation’s Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.

Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.” That pledge did not stop the Family Foundation and from frequently hosting Cuccinelli at events, accepting his sponsorship, and cheer-leading for his political career.

Arlingtonvirginia

I notice you completely ignore his ethical obligations as an attorney.

jkld

His 1st ethical consideration AND obligation is to the US CONSTITUTION and making sure that the laws of the Commonwealth come in line with the US Constitution.

Arlingtonvirginia

Wrong. Like all lawyers, his first ethical consideration and obligation is to his client.

jkld

Actually, since he’s an elected official, his 1st priority is to uphold the US Constitution, and the Va. Constituion 2nd.
He has the right and precedence to do what he’s doing.
Only the ignorant would oppose SS marriage in the 1st place.

Donna Martin

Why is believing that a marriage is between a man and a woman is ignorant. We’re in good company. The majority of Virginians believe this.

U.S. District Judge Arenda L. Wright Allen’s decision Thursday makes Virginia the second state in the South to have a ban on gay marriages overturned. It comes the day after a similar ruling in Kentucky and following similar rulings in federal courts in Utah and Oklahoma.

Wright stayed her decision until an appeals court rules, meaning that gay couples will not be able to marry in the state immediately.

Wrong. Ethics rules require you to do certain things if your duty conflicts with the constitution, laws, etc. you can’t even reveal your client is lying if it was told to you in confidence. You would have to get yourself removed from the case.

DavidH

No, Arlingtonvirginia, you are wrong. There is no conflict in your example because there is no general legal obligation to report lying (or other crime).

The ethics rules are part of the Rules of the Supreme Court of Virginia. Where there is a direct conflict between a statute and a court rule, the statute wins. Va. Code § 8.01-3(D).

mjritter

You surely must have flunked govt 101. Herring has every right to do exactly what he has done. And any complaint filed would be political and would be laughed at and treated for what it is, trash. As the AG he is a constitutional officer. He has wide latitude in the decisions he makes. His actions are far from unprecedented, no matter what others claim. Mr Herring even lists some in an op-ed piece in the Richmond Times Dispatch. He also shows the hypocrisy of those crying foul. You like to argue your point, but l doubt seriously that you’ve read the brief that Herring filed. If you haven’t, then how do you argue against it? Without knowledge you are weak, much like your argument. You can’t argue that which you do not know..

Mr. Herring cited legal cases in which he said Virginia’s leadership had failed its residents by arguing against school desegregation in Brown v. the Board of Education, interracial marriage in Loving v. Virginia, and women’s admission to the Virginia Military Institute, a state-supported military college, in United States v. Virginia.

“Too many times in our history, our citizens have had to lead the way on civil rights while their leaders stood against them,” Mr. Herring said. “This will not be another instance. It is time for the commonwealth to be on the right side of history and the right side of the law.”

The chairman of Virginia’s Republican Party, Pat Mullins, said in a statement that Mr. Herring had turned the issue into “a political farce.”

“The first job of Virginia’s attorney general is to be the commonwealth’s law firm, and to defend the duly passed laws of the commonwealth,” Mr. Mullins said. “If Mark Herring doesn’t want to defend this case, he should resign.”

In 2006, Virginia voters approved a constitutional amendment that defined marriage as being between a man and a woman. Mr. Herring acknowledged Thursday that he had voted for the legislation as a state senator before having a change of heart.”

Downstater

Funny hoe they all “evolved” at once.

jkld

The oath of office for the Attorney General of Virginia — which Herring took earlier this month — includes a solemn vows first to “support the constitution of the United States” and second to support “the constitution of the Commonwealth of Virginia.” Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions — so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend.

Moreover, two recent Republican Attorneys General of Virginia — both Family Foundation favorites who had the support of Howell and Marshall — also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation’s Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.

Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.” That pledge did not stop the Family Foundation and from frequently hosting Cuccinelli at events, accepting his sponsorship, and cheer-leading for his political career.

PaulH

It is not the role of the Virginia AG to determine US constitutionality. That’s the role of the US Supreme Court. Until ruled against by a COMPETENT authority (which Herring is not), or until Virginia voters vote to change the law, it is the role of VA AG to defend what the public has voted for and for which the Governor has signed into law. There is a process for change, and Herring is not in compliance with it. If Herring was going to do this, after a “thorough legal review”, surely he had this in mind well before November 5th 2013. Therefore, he should have come out and announced this as part of his campaign platform. Since he dd not, this amounts to “bait and switch”, and a deception and betrayal of those who voted for him in the belief he would actually carry out his oath of office.Support the petition to impeach Herring for malfeasance.

jkld

He has the right NOT to defend a law that he, and others, deem unconstitutional, per the US Constitution. He DOES have the right to choose NOT to defend it, but he HAS to enforce it as long as it’s on the books, which is what he’s doing. Both Kilgore AND Cuccinelli did not defend laws that they deemed unconstitutional, as was their right to do so.
His FIRST obligation is to the US CONSTITUTION and to the VA Constitution 2nd. ALL Virginia laws MUST come into compliance with the US Constitution, not the other way around.
Why would you impeach him since he has done absolutely NOTHING WRONG except in the fantasyland of yours?

PaulH

It’s a quibble to say Herring is “enforcing” the law, when he is going to fight to repeal it.

The fact is, the US Supreme Court did NOT say “gay marriage is legal”. The Justices left that up to the states….. All the justices said was the IRS could not assess estate taxes on a same sex couple differently than a married couple. Therefore, Virginia’s law is not unconstitutional.

A civil union or domestic partnership may very well be granted under law the same legal and financial rights as married couples. But there is no need for an Orwellian-style change to the definition of the word Marriage.

Lastly, the Loving case was still One Man and One Woman —- so that is a false analogy.

jkld

He is enforcing it as he has directed the Court Clerks to still NOT issue licenses to SS couples. That is enforcement. Again, he has the right to take the action he’s doing
The fact is that the SCOTUS left the door open for the challenges to come via the state cases, which ARE making their way thru the federal court pipeline. UT and OK are the 2 most recent to have been deemed unconstitutional by federal judges already under the 14th Amendment, but temporarily stayed so that appeals can be heard, which in turn puts it directly on path to the SCOUTS, + Virginia is in the works.
Yes, Loving was M/F, but it DID deal with marriage, abeit inter-racial but marriage just the same. ,DOMA was not m/f, but SS. The door has been opened for the challenges.
And btw, just because you have the opinion that there is “no need” for the change has no bearing on the constitutionality of the question.
The change IS coming, and a LOT sooner than you and others want.

PaulH

Per AP Article today, “U.S. District Judge Arenda L. Wright Allen considered not even hearing verbal arguments in the case because of the “compelling” filing by the attorney general’s office. Wright Allen is a former public defender and assistant U.S. attorney who was appointed to the post by President Barack Obama.”

I WONDER, REALLY, DOES A JUDGE THAT CONSIDERS NOT EVEN HEARING ORAL ARGUMENTS IN A CASE SOUND LIKE A FAIR JUDGE TO YOU?????? The rule of law is being replaced by the “anything goes” mentality of liberals, that is, as long as someone else prints the money and pays the bills.

jkld

The Judge has the right, just as Herring, whether or not to hear the case. The case was reclassified as a Class Action Suit.
Regardless of what the Judge rules, the case will be appealed either way. So? Your point? The point is, it’s NOW in the pipeline, straight to the SCOTUS, along with other numerous other case from UT, OK, and now VA and others.
So? Your point?
You REALLY need to get over it. I believe it was the Virginia Solicitor General who presented the doomed case for VA. There was no reason NOT to hear the case. Herring had the right, just as did his predecessors, to do what he did.
Get over it.

PaulH

Being in favor of traditional marriage is not bigotry (or anti-homosexual as you seem to infer). It is simply a fact that it is in society’s best interest that children be raised by their biological parents in a committed monogamous relationship, Society obtains unique benefits to the common well-being and recognizes this with the Institution of Marrriage.

Other types of relationships can also raise children (or choose not to raise children).

However, only one man and one woman can create a child. Again Loving vs Virginia was still One Man and One Woman. ….Not sure how 2 men or 2 women are going to carry on the human race…..I must have missed that part in biology class.

jkld

Your beliefs are your beliefs They are totally irrelevant to the question of constitutionality and EQUAL RIGHTS under the law. A book of theology is NOT the rule of law in this country. The LAW is derived from and subject to the US Constitution.
BTW – single people adopt children. Gay people adopt children. Gay couples have children via surrogates. The way you THINK it should be has absolutely no relevancy in regards to the law and equality.

PaulH

Nowhere in my comments has theology or religious belief been mentioned. Don’t go there, as you will lose that one…. BTW I don’t think anyone else is posting on this topic. Its time for me to go campaign for Herring’s impeachment and recall.. TTYL.

jkld

Futile campaign since HOD has no intentions of doing it in the first place (it’s already been stated). They already know he’s got the right, as well as the precedence, to do what he’s done.
Religious beliefs – yours, mine, or anyone elses – have absolutely NO relevancy with regard to what is or isn’t constitutional. A book of theology is NOT and never will be the law of this country, regardless of what you or others want.

PaulH

After thinking of this more,…. I am wondering, what is equal about children being denied the natural right to being raised by a mother and a father. They won’t have a choice in that matter yet, will have been encumbered in life by those who think “gay” “marriage” is “equality”…..

jkld

Is it not far more important that they be raised by someone who LOVES them and can provide for them in a stable environment, regardless of what gender they are? For a child, THAT is far more important that your version of what a family is. Families came in all colors, shapes, sizes, AND gender.
Again, just because YOU and others believe 1 way does not make other ways wrong, nor is it relevant with regards to the question of equal rights and constitutionality.

PaulH

if 2 homosexual people want to raise a child, it does not logically follow that the definition of marriage needs to be changed to accommodate that. Civil union and domestic partnership can accomplish that.

“gay marriage” seems to be a discriminatory term. because it excludes lesbians, trans-sexuals, bi-sexuals and questioning sexuals (whatever THAT is). It seems to me that some other word is needed to describe the non-marriage relationships you are espousing. Some have suggested the term parriage e.g. partner / paired / parriage.

It infringes on my rights when I say I am married, to then have to explain I am married to a woman (which I am, in case that hasn’t been evident so far). Married by definition means One Man and One Woman as per the natural order of life. Check the biology…. I have no problem with 2 men or 2 women being in a committed relationship and receiving equal treatment under tax codes, insurance laws, inheritance laws, etc, but that is not marriage.

However when it comes to children, who is looking out for them? It is in the state’s interest that children be raised by their biological parents as much as possible. What happens when the biological parent wants to assert his or her rights (due to being 50% of the DNA), or on the other hand, when he or she is forced to support a child after donating egg or sperm, and does not want to / did not intend to provide support. Then you have a legal nightmare with 3 parties in contention.

I’m confused with your continued references to Loving vs Virginia. That was still One Man and One Woman. Again, check the biology…… Its not bigotry that Marriage is One Man and One Woman. Biology, take note that nowhere have I mentioned religion.

jkld

When you deny a person their rights, it IS bigotry. What part of that do you NOT understand?
Loving WAS and IS about CIVIL RIGHTS.
Again, denying one’s civil rights under the US Constitution was and IS wrong. After all, the basis of your arguments were used by racists and bigots for years to deny minorities their rights. Why is your bigotry any different?

PaulH

I had to look up bigotry: “bigoted attitudes; intolerance toward those who hold different opinions from oneself.”. Homosexuals who support changing the institution of marriage as One Man and One Woman are the ones who are being intolerant of True Marriage and Biology. They don’t seem to understand that the Law of Nature dictates otherwise.

As to the 2/13 ruling by the prejudiced, (i.e., pre-judged “judge” in Norfolk, who announced she didn’t even want to hear oral arguments before deciding the case….. At least she had the sense to stay her own decision to avoid the turmoil of illegal / false marriages occurring. Looks like the cases will head to the US Supreme Court. We’ll see what happens there.

jkld

Considering that VA, KY, OK, and UT have ALL had their bigoted amendments struck down as illegal under the 14th Amendment of the US Constitution, AND there WILL be more to come – you’re right. The cases WILL all go to the SCOTUS.
False? So, a marriage that is not performed in a church but by a judge or justice of the peace only is false? Tell that to millions of straight couples who have NEVER been married in a religious ceremony.
Again, it’s a matter of CIVIL RIGHTS of ALL.

PaulH

Civil Rights includes the right of children to be raised by their own biological parents, as the best environment for success. Who is speaking up for them? As a matter of fact, who is speaking up for unborn children? I’ll bet its not the Liberal Left? CIVIL RIGHTS FOR ALL.

No you’re missing the point. The point is, children deserve the right to be raised by both of their biological parents, and your mission of re-defining Marriage fundamentally deprives those children of that right.

Next, you will see the Eric Holder, the ACLU and other leftists petitioning the IRS to remove tax-exempt status from churches, synagogues, mosques and temples;and prosecute businesses who disagree morally with providing wedding services to other than One Man and One Woman.

jkld

Nope. Didn’t miss your ill-informed point at all. As long as children are raised in a loving, nurturing environment, they don’t give a rat’s behind whether it’s 1 or 2 parents, straight or gay. The only people who have a problem with it are those people too ignorant and bigoted to understand that. After all, children are taught hate from those who are ignorant.
And why shouldn’t churches pay taxes to begin with? After all, the tax exempt status is being abused by some churches, etc trying to interfere with the political process, i.e. separation of church and state. If they want to keep doing it, give up the tax exempt status and PAY UP or shut up.

Craig Scott

Where are these enumerated power that children have to raised by biological parents? May I have a source or sources please? All children deserve a loving home who ever brings them up and without the intrusion or interference of the state.

Craig Scott

The Virginia law is stupid and I voted was against it, unlike Herring. But the Feds have no enumerated power to regulate marriages, unlike the States, which do. That said, what business does any level of govt have between consenting adults, not hurting each other? It should be repealed via the Commonwealth’s lawful process which Herring is ignoring for political expedience and perceived gain on his part. He is acting unlawfully and should be impeached and tried on that merit alone.

jkld

Guess all the . judges that have ruled via 14th Amendment Equal Protection clause pertaining to this same issue are wrong, then (not)
BTW – the 14th was also the basis for Loving v. Virginia in saying that marriage IS a fundamental right.
You’re right, tho, in that the VA law, just as is all the other ignorant bans on SSM, is wrong. When you consider that civil rights pertains to ALL citizens. However, the states also have to have their laws in compliance with the US Constitution, as it IS the basis for ALL laws, federal and state. It is the US Constitution that grants the states their rights in the first place. So, IOW, if it can’t pass the Federal Constitution smell test, it’s illegal, irrelevant, and unenforceable.

Craig Scott

Yep. It was violation of the 15th and common law though. Again the Feds have no lawful authority. An aside, the 14th amendment was never properly ratified. Look it up. See the above in “Korematsu”. Currently the most racist institution is the Federal govt with its unlawful quotas, most disgusting. Where is equal protection under the law? Marriage taxation or otherwise? Again, marriage is between consenting adults as has been done for thousands of years, without the State’s control. Why would endorse persons as chattel of the State?

jkld

Well, it’s not a federal question that’s being addressed now. That was addressed in the decision re DOMA. All questions coming up now are re state laws that directly violate the US Constitution’s 14th Amendment.
You’re exactly right in that marriage IS between consenting adults, regardless of race OR sex. That’s precisely why the states’ banning of SSM is totally unconstitutional under the 14th EPC.

Craig Scott

If it is Civil Right as some, judges say and not a privilege, then all licensing should be outlawed as unconstitutional for marriage.
Let’s just petition Richmond and have the amendment over turned instead of whining to the courts to make up rules.

U.S. District Judge Arenda L. Wright Allen’s decision Thursday makes Virginia the second state in the South to have a ban on gay marriages overturned. It comes the day after a similar ruling in Kentucky and following similar rulings in federal courts in Utah and Oklahoma.

Wright stayed her decision until an appeals court rules, meaning that gay couples will not be able to marry in the state immediately.

jkld

BTW –

There’s been some talk (coalesced here at Bearing Drift) of impeachment proceedings bubbling up out of the Virginia House over Attorney General Mark Herring’s announcement last week that he won’t defend the state’s gay marriage ban.

Not gonna happen, according to House leadership. Majority Leader Kirk Cox said he hadn’t heard about the effort.

“I would not be interested in that,” Cox said.

So…your effort is for naught. Why not put your efforts to something more useful and valid, instead of supporting bigotry?

Craig Scott

Herring filed an Amicus (brief) Curiae against his own client, the Commonwealth of Virginia. The other’s you sighted did not. These are grounds for disbarment.

jkld

His “client” is also the citizens of the Commonwealth. His FIRST obligation is to the US Constitution. He acted appropriately in the interest of his ‘clients’ and questioned (rightfully) the constitutionally of a bigoted law. He had precedence per 2 previous GOP AGs, Cuccinilli and Kilgore.

Craig Scott

Again the Feds have no enumerated power to regulate a private (common law) contract between consenting adults. Virginia does, even though I disagree with it. Even if you say was true, Virginia is still his client (the office charter of AG), the amicus brief is against that client. Their are no short cuts to freedom.
“I’d give the Devil benefit of law, … Yes, I’d give the Devil benefit of law, for my own safety’s sake!” – Thomas More

jkld

Since the state HAS to issue marriage licenses for a marriage to be valid, it does address the issue of equal rights under the US Constitution’s 14th Amendment.

The VA AG also has its citizens as his clients, Rainey included. Since the Va law is unconstitutional, he has an obligation to Rainey and others like him to see said law overturned. Herring was right. He represented his clients – Rainey and others. Just because Rainey et al are in the minority does not negate that obligation. The fact that the ‘majority’ disagree is totally irrelevant.

Actually Virginia or any other state in the republic does not have to issue licenses for any form of commerce, it has the authority do so, but it does not have to. Before the artifact of the French revolution, no State was involved in marriage. If DOMA had gone the other way, it would not matter as the Feds again have no enumerated powers in this area and if so, we are tax chattel / serfs of the State. The courts cannot grant and remove rights, thus have no standing. If you think they have standing, then you are abetting neo-slavery, nothing less. Marbury or other wise, it is tyranny pure and simple, no amount sophistry will change that.
Jury nullification is the last bastion of freedom,in common and natural law. I’ll take then Secretary of State Jimmy Madison over John Marshall any day of the week.
Again; Kentucky and Virginia Resolutionshttps://en.wikipedia.org/wiki/Kentucky_and_Virginia_Resolutions
Endorsing Oligarchy causing another Dark Age is not my idea of justice.

jkld

To be legally married in Virginia, one has to obtain a license.

Code of VA § 20-13. License and solemnization required.

Every marriage in this Commonwealth shall be under a license and solemnized in the manner herein provided.

§ 20-14. By whom license to be issued.

Every license for a marriage shall be issued by the clerk or deputy clerk of a circuit court of any county or city. If from any cause neither the clerk nor his deputy is able to issue the license, it may be issued by the judge of the circuit court of such county, or city, who shall make return thereof to the clerk as soon as there may be one.

And btw – to conduct business in VA, one must obtain a business license from the county or city where they are conducting business.

Craig Scott

Bingo! The states have that authority, the feds have no such apparatus. The states can change or remove the laws, the feds have no such power. The marriage license is pertaining for tax and census purpose, not in the eyes of God / religious ceremonies or in private venues.

jkld

They still HAVE to be in compliance with the US Constitution re the 14th Amendment’s EPC. After all, it is because of the Federal Constitution that the states have what powers they have. And in this issue, State laws still have to comply with the US Constitution, whether they like it or not. If they don’t, said state law is unconstitutional because it is discriminatory.

Craig Scott

This is selective creativity and enforcement by the courts, yet again. Why for example are married couples taxed differently from single folks or from different states under identical income circumstances?
As I said earlier: Let’s just petition Richmond and have the amendment over turned instead of whining to the courts to make up rules or rights…
Again the US Constitution does not cover marriage, child rearing or a myriad of other things.

jkld

BUT the Constitution DOES cover civil rights. And that’s what Rainey v. Bostic is all about, just as Loving v. Virginia, and Brown v. Board of Education was. It’s ALL about civil rights under the 14th Amendment

re the marriage penalty tax is per the IRS. I’ve been paying that one for 33 years. That’s why I only claim 1 exemption and file at single higher rate. LOL

Craig Scott

If it is Civil Right as some, judges say and not a privilege, then all licensing should be outlawed as unconstitutional for marriage.

Plessy and the courts not enforcing the 15th caused those issues.

Bingo again! Marriage is separate class of citizen and citizens from different
states are taxed differently where is the 5th on this one?

In “Korematsu” are you saying the Federal Constitution does apply the Feds?

jkld

ah, but Marriage was addressed via the 14th with Loving already. The equality question + marriage as a fundamental right has been already been brought up (in Loving) and will apply in this case as well.
re Korematsu – Scalia has already admitted that the court’s ruling in 44 was in error but ‘could’ happen again in the time of war. However, that might be highly unlikely nowadays due to a more evolved astute and highly visible fight for civil rights that was not found in that time period. As I see, Korematsu was later exonerated because of the errors found. Even as late as 2011, the Fed. Gov petitioned for the overturn of the decision. And yes, even the Feds are bound by the Constitution (duh!) as seen in the overturn of DOMA.

Craig Scott

I appreciate your response on DOMA. The Bill of Rights, especially the 5th, and common law, render DOMA irrelevant either way as all citizens (theoretically) have equal protection under the law, although again not in practice. Scalia has correctly warned; Inter arma enim silent leges – “For among [times of] arms, the laws fall mute,” although it is more popularly rendered as “In times of war, the law falls silent.” This is just one of many examples of the court just making up laws and the edict is still on the books. Vesting total power in judges such as Marshall who was in violations of the writs mandamus while ruling on the Marbury case was a concentration of power undreamed 13 years earlier… That is why for example during the Fugitive Slave Act, state juries, nullified the Supremes supporting the Feds. Federal officers can and have operated outside the law. This why we need the Kentucky and Virginia resolutions, OK?

jkld

You do mean that the KY, VA, UT, OK, and all other discriminatory amendments overturned, right? And you would be right. They ALL need to be overturned re civil rights for all.

Craig Scott

Minoritarian protection is essential, whether, race, religion, property,
etc. If marriage is a Civil Right and not a privilege then all levels
of government have no authority to license such transactions. It can’t
be both ways. Marriage is a choice and therefore a privilege, not a
civil right. But under the current perceived rubric, which you
subscribe, then no level of the State can license such activity as it is
basic a human right such as with the practice/ attendance of a religion
which is not licensed, so it would be in the practice / attendance of a
marriage.

jkld

Ah, but marriage is not only a right, but a voluntary contract. And as such (the contract), one must have proof (the issued license) to show that one has a legitimate contract.
Apples and oranges re religion. One doesn’t have to prove that one is religious in order to gain monetary benefits such as health care, inheritance, etc such as was the crux of Winsor in the overturning of DOMA. However, in order to gain survivors benefits, etc, one DOES have to prove one is/was legally married (i.e. license).
It is the issuance of the legal license (legal contract) to all without discrimination that is a big part of the issue.

Craig Scott

And if it is a religious marriage or if you don’t want the benefits? Monetary benefits are also a privilege or benefit, not rights. You still “need” a license for this or a civil / human right? Sounds like a dangerous quagmire to me… Look, we can agree to disagree on semantics, I see the courts as forms often of arbitrary and absolutist power, you don’t, etc. Again skepticism should be the order of the day, because government has a monopoly on force, you don’t see it that way. History has, is, and will be the judge. Thank you and have a pleasant evening.

jkld

Religious marriage still has to have a license issued by the state in order to be legal. It’s up to the people involved whether or not to be married by a religious officiate or by a civil authority. Doesn’t matter. Still have to have license. No out in that.

Craig Scott

I’ll bet you can beat this under religious, conscious grounds or the marriage can be called something else and of course it be changed by the various state legislatures.You certainly are dogmatic.
The right of privacy — “the right to be left alone”, as Justice Louis Brandeis once defined it—is fundamental to our understanding of freedom, but nowhere does the Constitution mention it. As it is common law – my emphasis. Again have a pleasant evening.

jkld

Dogmatic, no. Just a constitutional researcher who loves the law and knows that SSM bans will soon be overthrown. No longer an IF, but simply a WHEN. If I were a betting person, I’d say the next SCOTUS term will have the cases before it. AND if I were a betting person, I’d say VA may well be leading the way since the 4th Circuit is part of the Rocket Docket and doesn’t screw around.
Nite!

Craig Scott

I see this as a distraction from the main event, the Federal government is operating unlawfully and the US Constitution is no longer functioning.
1) Confiscation of wealth without due process of law, better know as inflation promulgated by the 3rd central bank of the United States. Again, can Congress delegate sovereign power that is enumerated to itself to a private cartel? (yes, with a constitutional amendment) Where are the are various Coinage Acts that are laws past by congress?
2) Scores of undeclared wars all over the globe in the last 60 years. I believe Abe Lincoln set that precedent.
3) We live in a police state, suspension of habeas corpus, yet again by executive fiat, secret tribunals outside the perveiw of congress and the people, no and general warrants in use with mass surveillance,
4) The 9th & 10th amendments are ignored, organs of the Federal Government not authorized grow crushing the people of their succor…
5) The insane drug war, another back door attack on freedom with neo-slavery of the largest prison population in the world, again the Feds have no enumerated power to regulate this. As you know Alcohol prohibition was done lawfully and repeal there of.

On and on, this venue does not permit a full list unlawful actions.

Maybe you are too in the weeds or a in bubble of your studies and research. Does any of this resonate with you?

The marriage amendment in the Virginia Constitution will be removed and I do dislike short cuts through the courts, which in my opinion is a fickle option. I am hoping for a mass awaking of the people such as happened in the Abolitionist movement or the Civil Rights movement which the Courts revisited to redress these long standing injustices.

jkld

Ah well….such is life
Bubble? Hardly. I deal in, work in, and live in a world of reality. Always have, always will.
Yep, the marriage amendment in VA, just as it will in other states, will be proven unconstitutional because it IS. Short cut thru the courts? Nope. The Rocket Docket is no short cut. It’s simply that the judges here don’t mess around and refuse to allow attorneys to use delaying tactics like they do out west and have cases drag on for years before the come up.
Have fun. The people win. Bigotry loses.

Craig Scott

I am an average citizen, not privileged to work at the courts. Justice Scalia’s warning is relevant… Far more African Americans are locked in the prison industrial complex for non-violent crimes of unlawful Federal drug codes, by at least a 100 fold than are inconvenienced for not getting married. Bigotry at all levels of government is disgusting and is lawful. Yet the organized bigotry has most manifested itself and via the Feds mandated quotas currently. The shameful display of the High Court over the centuries has often aided and abetted such activity. All branches, agencies, NGOs should be held accountable. It does sound like you are working with a tree (very hard) and not seeing that forest. If one is inside a bubble, one usually does not see it. I am not judging, but your points seem to be myopic. We agree on this goal anyway, just maybe with different methods. Good luck and thanks.

jkld

ps….Virginia DOES have to right to issue licenses for forms of commerce.

1. License requirement. Every person shall apply for a license for each business or profession when engaging in a business in this jurisdiction if (i) the person has a definite place of business in this jurisdiction; (ii) there is no definite place of business anywhere and the person resides in this jurisdiction; or (iii) there is no definite place of business in this jurisdiction but the person operates amusement machines or is classified as an itinerant merchant, peddler, carnival, circus, contractor subject to § 58.1-3715, or public service corporation. A separate license shall be required for each definite place of business and for each business. A person engaged in two or more businesses or professions carried on at the same place of business may elect to obtain one license for all such businesses and professions if all of the following criteria are satisfied: (a) each business or profession is subject to licensure at the location and has satisfied any requirements imposed by state law or other provisions of the ordinances of this jurisdiction; (b) all of the businesses or professions are subject to the same tax rate, or, if subject to different tax rates, the licensee agrees to be taxed on all businesses and professions at the highest rate; and (c) the taxpayer agrees to supply such information as the assessor may require concerning the nature of the several businesses and their gross receipts.

Notwithstanding the foregoing, the governing body of any county, city or town with a population greater than 50,000 may waive the license requirements provided herein for businesses with gross receipts of less than $100,000.

Craig Scott

Agreed my friend and right to remove them or change them. A neutral example: A license for a hair stylist is now required, 30 years ago it wasn’t and it is an unnecessary burden to the small business person operating out of her house, it could and should be abolished. Virginia has that authority, this is optional for the several states only.

Cuccinelli didn’t advocate in court against the Law.
As far as a “mandate” I’m sure I can find far more then 907 people who voted for Herring who aren’t pleased with his current actions.

Edward Kimmel

Cuccinelli refused to defend the laws he knew to be unconstitutional, but certainly never said he would do that during the election. Herring told Virginia that he did not believe the “we can’t share marriage with the gays” amendment was constitutional during the campaign. The people and the courts have agreed with him. I don’t know why anybody would change their vote. Perhaps they didn’t pay attention during the campaign. Perhaps they weighed that into their decision, preferring Herring’s position on enough other issues to balance it out.
But it hardly matters. The voters who agreed that Walter Jenkins deserved to be jailed are dying and being replaced with voters who can’t imagine why society would want Cam and Mitchell to be forced to pretend to be straight and to ruin the lives of girls who fell in love with them. It is VERY clear which way the courts and the people are going on this issue.

Downstater

Edward, Keep us the hate.

Edward Kimmel

I wonder what that means. Diagramming the sentence, “Edward” is the subject. “us” is the object. “Keep” is the verb. But I can’t figure out what “the hate” is. But then, I’m don’t understand what “Edward, keep us” would mean. I don’t HAVE you, so I don’t see how I can KEEP you. I don’t get it. It seems like the sort of meaningless gibberish that anonymous posters often proffer.

http://redstate.com/ midwestconservative

nobody is forcing anybody to “pretend to be straight”.

And the name of the Amendment was Marshall-Newman not “We can’t share marriage with gays”
Try to show at least a minimum of intellectual honesty.
Also if we are judging this by number of votes. 1.3 million trumps 1.1 million.
The Former is how many voted for Marshall-Newman which was very explicitly dealing with the Marriage Issue
Whereas the latter number is the number of votes Mark Herring got, and no doubt a significant number are opposed to the AG’s current actions just as surely as some pro-gay marriage voters voted for Mark Obenshain.

Edward Kimmel

What else is there to the “Marshall-Newman Amendment” than “we won’t share marriage with gays?” And if it is not an attempt to force gays to pretend to be straight, what IS you purpose in denying gay people all of the tax benefits, debtor-creditor benefits, and all of the other more than 1,000 government benefits it gives to married people, but would deny to gays, UNLESS they get married to a person of the opposite sex?
Where is the intellectual honesty of pretending that your opposition to marriage equality is based upon some pretended concern for . . . for what??? What is your interest in withholding equality to people who were not born with your sexual orientation? Why do you want to do that?
Frankly, it all comes down to whether or not you believe that being physically attracted to people of your own gender instead of the opposite gender is something that a person CHOOSES. I don’t believe you decided, as a teenager, that you would be physically attracted to opposite gender people. I certainly didn’t. I didn’t decide to be mesmerized by breasts. In never thought “life will be easier if I am totally grossed out by the idea of having another man’s member touching me anywhere.” But I get it. There are some men who just are not interested in naked women. I don’t know why they want to rub their cheeks against razor stubble. Frankly, I don’t fully understand why any WOMAN wants a hard muscular body up against hers, although I’m glad some do.
But here’s the deal: if you cannot find some important state interest in allowing straight people to be called “married” and to have their love recognized and validated and supported by the state, then it isn’t going to be ruled to be constitutional. If the Virginia Legislature passes a blatantly unconstitutional act, then Ken Cuccinelli and any other attorney will tell the courts what his honest legal opinion is. If the people of Virginia attempt to re-enact the law that was struck down in Loving v Virginia, that banned blacks from marrying white people, any attorney who believes in his/her oath will tell the court that that law is unconstitutional.
This amendment is unconstitutional. Courts all over the country — in Oklahoma and Utah, everywhere — are agreeing that there isn’t anything besides hatred to justify these laws. And that does not pass constitutional muster.

nmill005

907 votes…interesting definition of “mandate”.

http://redstate.com/ midwestconservative

Just so you know, 57% of Virginia voters approved the Amendment back in 06, that’s a far bigger “mandate” then anything Herring’s got.

Edward Kimmel

And yet “they” voted in favor of the guy who said he was against this rule now. What does that mean to you?
What it means to me is a combination of a) some people, like Mark Herring, changed their minds between 2006 and 2013 and b) there is a different electorate. I have never known of any issue that skews old like this one. With voters over 70, anti-gay feelings are nearly a consensus. A huge percentage of that population still thinks gays should be jailed, like they were in 1960 and at all times prior. Nearly all of that demographic thinks they should be prohibited from holding jobs that cause them to be in contact with children. Almost none of them think they should be allowed to be married.
It’s just the opposite for 35 and younger. The absolute LAST thing anybody under 35 wants to do is to force3 gay people to try and be straight. They sure as heck don’t want to marry a boy who would rather be with a boy, or vice versa, and it doesn’t matter a whit whether that’s by choice, or by genetics, or anything else. If she doesn’t want what I’m selling, I absolutely do not want her to try and force it so that she can make 70 year olds happier.
So, bottom line: some of yours died and were replaced by some of mine. And that’s a trend that is accelerating and will never go backwards.

Downstater

Not everyone who voted for that amendment back in ’06 is dead and buried yet. We are still here, and some of us are still young.

Edward Kimmel

Oh, I’m positive that segregation would still get SOME votes. Even some votes from some young people. But a policy with no justification besides hatred cannot last long.

TVal

Ignoring most of your mindless ranting, going straight to the last line – “that’s a trend that is accelerating and will never go backwards” – a trend so artificial/non-organic that happened so quickly is bound to shoot back like a boomerang.

jkld

What the people approved and what is constitutional are 2 different things entirely.
It’s what’s CONSTITUTIONAL that matters, not the fact that the law was passed.

The oath of office for the Attorney General of Virginia — which Herring took earlier this month — includes a solemn vows first to “support the constitution of the United States” and second to support “the constitution of the Commonwealth of Virginia.” Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions — so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend.

Moreover, two recent Republican Attorneys General of Virginia — both Family Foundation favorites who had the support of Howell and Marshall — also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation’s Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.

Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.” That pledge did not stop the Family Foundation and from frequently hosting Cuccinelli at events, accepting his sponsorship, and cheer-leading for his political career.

http://redstate.com/ midwestconservative

Nowhere in the Constitution is gay marriage a right. Nor has any court that holds jurisdiction over the Commonwealth of Virginia established Legal Precedent enshrining that.
In fact the most recent court case that might’ve affected Virginia on this issue was Windsor v. the United States ( the DOMA case) an in that ruling Section 2 of DOMA which protects States from sanctioning gay marriage should they choose not to was upheld.
the 14th Amendment was not cited by the Majority as the reason to overturn Section 3 of DOMA ( Section 1 and 2 are still in effect) but rather the 5th Amendment’s Due Process Clause.
This isn’t because Herring ( who voted for the Marriage Amendment) thinks that it’s “unconstitutional” this is because Red Herring wants more votes then Northam in the inevitable Democrat Primary for Governor in 2017.
That’s fine, Cuccinelli played that game as well and it worked out GREAT for him.
For every one of the Left’s causes that Mr. Herring champions his prospects as a general election victor shrink.

jkld

Nowhere in the US Constitution does it say that it’s not, either. That’s why the 14th’s Equal Protection Clause was used in Loving v. VA to rule the ban on inter-racial marriages unconstitutional.
He has the right to refuse to defend it. He has to enforce what’s there now, but he doesn’t have to defend it, and appropriately so.
.

Old-Timer

What an astonishing waste of time. Fortunately, the Speaker knows better.

Saran Plastic Wrap

New rule: You can’t refuse to enforce laws that got a higher percentage of votes than you did.

jkld

Actually he has the right as did his predecessors

The oath of office for the Attorney General of Virginia — which Herring took earlier this month — includes a solemn vows first to “support the constitution of the United States” and second to support “the constitution of the Commonwealth of Virginia.” Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions — so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend.

Moreover, two recent Republican Attorneys General of Virginia — both Family Foundation favorites who had the support of Howell and Marshall — also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation’s Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.

Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.” That pledge did not stop the Family Foundation and from frequently hosting Cuccinelli at events, accepting his sponsorship, and cheer-leading for his political career.

Arlingtonvirginia

You are neglecting, deliberately, to mention that Herring is actively aiding his client’s opponent. He has a legal obligation to recuse himself, appoint independent counsel, NOT to aid the other side.

jkld

Doesn’t matter. The precedence is the same and he HAS the right to do so.

Arlingtonvirginia

He’s just as obligated by legal ethics as he is by persuasive legal precedent from other jurisdictions. Lawyers often get disbarred/sanctioned for doing the “right thing” if it hurts their clients interest.

jkld

His 1st Ethical Consideration is to the US Constitution and making sure that the laws of the Commonwealth come in line with the US Constitution.

Arlingtonvirginia

Why do we have states or state attorney generals if we have federal courts to decide these issues?

jkld

To handle state laws that HAVE to be in clear and concise agreement with the US Constitution.
Only the FEDERAL courts can decide issues of constitutionality. And the SCOTUS has the final say per Marbury v. Madison.

Arlingtonvirginia

If only Federal courts can decide issues of constitutionality, why are you cheering Herring having personally doing that?

The case was McCulloch v. Maryland (1819).
The legal issue: Could the state of Maryland tax the Second Bank of the United States? It was a private bank.
The issue, as stated by Chief Justice Marshall in a long, detailed decision, was this: Does the Constitution allow Congress to charter a bank? That was what Congress did in 1791: the [First] Bank of the United States. It was a central bank. Its charter lapsed in 1811.
The Second Bank of the United States was chartered by Congress in 1816.
In 1818, Maryland voted to tax the Bank. The Bank refused to pay. The Supreme Court decided in favor of McCulloch, an agent of the Bank.
Here is the standard version: “The case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?” (http://www.oyez.org/cases/1792-1850/1819/1819_0 ) This is the textbook account. It is Marshall’s account.
The historical record does not support this limited description.
Marshall deliberately refused to deal with the central legal issue raised by the state of Maryland. That issue was not whether the Congress had the authority to charter a corporation. Rather, it was this:
Does the United States Constitution authorize Congress to delegate federal sovereignty to a private corporation?
In Marshall’s long decision, he summarized the position of the state of Maryland.”
Continued… http://www.lewrockwell.com/2014/01/gary-north/how-the-banksters-took-control/

jkld

Per Marbury v. Madison (1803), the SCOTUS holds final say re judicial review and constitutionality of an issue.

jkld

In Marbury, the Court had to decide whether an Act
of Congress or the Constitution was the supreme law of the land. The Judiciary
Act of 1789 gave the Supreme Court original jurisdiction to issue writs of
mandamus (legal orders compelling government officials to act in accordance
with the law). A suit was brought under this Act, but the Supreme Court noted
that the Constitution did not permit the Court to have original jurisdiction in
this matter. Since Article VI of the Constitution establishes the Constitution
as the Supreme Law of the Land, the Court held that an Act of Congress that is
contrary to the Constitution could not stand. In subsequent cases, the Court
also established its authority to strike down state laws found to be in
violation of the Constitution.

Before the passage of the Fourteenth Amendment
(1869), the provisions of the Bill of Rights were only applicable to the federal
government. After the Amendment’s passage, the Supreme Court began ruling that
most of its provisions were applicable to the states as well. Therefore, the
Court has the final say over when a right is protected by the Constitution or
when a Constitutional right is violated.

Craig Scott

It is ironic though Marshall was the one in violation of the writs of mandamus for his action or actually lack action, malfeasance involving Marbury ;^) We agree to disagree on article VI, the high court anointing itself such absolutist power. Be well and have a pleasant afternoon.

Craig Scott

Marshall should have recused himself, since he is the one who did not carry the appointment of Justice -of- the-Peace Marbury as Secretary of State during the Adams administration in a timely or responsible manner. If Justice Samuel Chase conviction in the Senate had not been bugled, John Marshall would have been impeached and would convicted in the senate also. Read Jefferson’s dire warning of consequences of the failure to convict Chase.

jkld

Jefferson was not on the court. Marshall was.
Woulda, shoulda, coulda does not law make.

Craig Scott

That is Jefferson’s point of Marshall, the Courts that will follow, have made law and will make law. Marbury, McCullough, Dred Scott, Plessy, and 1000s of other dangerous edicts… With terms of sophistry such as stare decisis, we have unelected judges making laws, you know this and outside the enumeration of their offices. The Court, often Congress and the executive are operating outside the bounds of law, common and Constitutional.
Let’s take one (neutral) example : Korematsu v. United States (1944)
Case Summary
Fred Korematsu refused to obey the wartime order to leave his home and report to a relocation camp for Japanese Americans. He was arrested and convicted. After losing in the Court of Appeals, he appealed to the United States Supreme Court, challenging the constitutionality of the deportation order.
The Court’s Decision
The Supreme Court upheld the order excluding persons of Japanese ancestry from the West Coast war zone during World War II. Three justices dissented.
Justice Hugo Black delivered the opinion of the Court. He began with the observation that legal restrictions on the rights of a single racial group will always be “suspect” and that “courts must subject them to the most rigid scrutiny.” However, they are not necessarily unconstitutional. The exclusion order imposed hardships “upon a large group of American citizens. …But hardships are part of war….Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.”
Justice Owen Roberts wrote in his dissent that this “is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.” Justice Robert Jackson noted that comparable burdens were not imposed upon descendents of the other nationalities (German, Italian) with whom the United States was also at war.
More on the Case
Read more: http://www.infoplease.com/us/supreme-court/cases/ar18.html#ixzz2tUUuXjTO
Surely you don’t follow the court blindly, think logically for yourself or we fall deeper into tyranny…

jkld

Until the SCOTUS overturns its own decisions, it is the final authority. Yes, it HAS overturned its own decisions, as new situations has arisen. However, it is and will be the final authority on what is and isn’t constitutional, per Marbury v. Madison which has never been overturned and most likely never will be.

Craig Scott

To my knowledge Korematsu has not been overturned, one of hundreds of tyrannical decisions. So Virginians, and other citizens can be thrown in concentration camps without due process of law, according to that logic of the Supremes, are omnipotent or least infallible. Sounds like a secular religious doctrine to me.
The State is supposed be our servant not the other way around. We are being tricked with yet another wedge issue that has nothing to do with any-body’s rights.

jkld

Again, your view. Not that of the SCOTUS.
BTW, sounds like you’re more the anarchist than anything else. Sorry, you’ll get no sympathy here.

Craig Scott

Anarchist, maybe? Federalist, yes. You might start with Madison’s Federalist # 51. You sir are apparently a nationalist, a Hamiltonian. I sir believe in Federalism, a Jeffersonian. I have no sympathy for your authoritarianism. Govt should be held in check with great skepticism, as it has murdered untold millions, persecuted (including homosexuals), untold millions more, while crushing the poor with untold cronysm that the Hamiltonians advocate with central planning as there venue.

mjritter

Because we also have something called the US Constitution. Try reading Herring’s brief and maybe you might actually learn simething

mjritter

Who do you think his “client” is? He represents more than just the state government…

mjritter

Wrong. He has no reason to recuse himself. Just the opposite, he has the obligation to right a wrong, to defend or assist a Va citizen against an injustice.

mjritter

Pretty lame comment actually. He still won.. and he’s doing exactly what his job entails. He has a job not only representing the state, but it’s populace, and poll after poll has shown that Va has shifted (like the majority if the US) to be in favor if marriage equality. Just like the ban on interracial marriage, sane sex marriage is discriminatory by it’s definition, serves no value to the state, does no harm to the state (in fact just the opposite).

Craig Scott

We need to petition Richmond and change the Virginia Constitution to remove the marriage clause. Whining to the court(s) is no way to run our republic. Herring could help himself by leading this change, he won’t though.

jkld

The oath of office for the Attorney General of Virginia — which Herring took earlier this month — includes a solemn vows first to “support the constitution of the United States” and second to support “the constitution of the Commonwealth of Virginia.” Article VI, Clause 2 of the United States Constitution makes clear that the federal constitution takes precedence over state constitutions — so when the two are in conflict, it is absolutely up to the Attorney General to make that decision. As the person duly elected to make that judgment, Herring, rather than an un-elected lobbyist or state legislators who choose to ignore the federal constitution’s supremacy, is exactly the person tasked by Virginia’s citizenry with determining which laws to defend.

Moreover, two recent Republican Attorneys General of Virginia — both Family Foundation favorites who had the support of Howell and Marshall — also made clear that they would not defend what they believed to be unconstitutional. In 2003, then-Attorney General Jerry Kilgore joined dozens of his counterparts from other states in signing a brief claiming that he was duty bound to challenge any statute he believed be unconstitutional. A year later, the Family Foundation’s Cobb donated to his gubernatorial campaign and she even served on one of his advisory boards.

Herring’s immediate predecessor, Ken Cuccinelli II, also refused to defend laws he deemed unconstitutional. Last year, one of his spokesmen noted, “If the attorney general’s analysis shows that a law is unconstitutional, he has a legal obligation to not defend it.” Indeed in 2009, Cuccinelli himself said in a debate, “I will not defend what I, in my judgment, deem to be an unconstitutional law.” “If I determine it not to be constitutional,” he explained then, “I will not defend it. My first obligation is to the Constitution and the people of Virginia.” That pledge did not stop the Family Foundation and from frequently hosting Cuccinelli at events, accepting his sponsorship, and cheer-leading for his political career.

Now to even entertain the stupidity and ignorance of impeachment in wake of the fact that he HAS the RIGHT to do what he’s done, and so did his predecessors, someone needs a BIG infusion of common sense and that’s the people that don’t have the INTELLIGENCE to know what they’re doing.

Doesn’t matter. The precedence is the same and he HAS the right to join in, as do other AGs across the country and who have done so in various constitutional suits.
You people need to get over it. The Amendment was and IS unconstitutional under the 14th Amendment’s Equal Protection Clause

Arlingtonvirginia

Excuse me, what mandatory precedent for Virginia states that the amendment is unconstitutional? There is nothing. Now you are either lying or clueless. Which is it?

jkld

The precedence is that other AGs have also exercised the right as well, as that the 1st obligation is to the US Constitution, not the VA Constitution (2nd only).
The recent VA sodomy laws (aimed DIRECTLY at gays) was ruled unconstitutional under the 14th Amendment Equal Protection Clause. As was DOMA. The next cases, including the VA one that Herring is rightfully joing, will directly challenge the banning of gay marriage. He has the RIGHT to do what he’s doing.

Arlingtonvirginia

Nothing you mention is a mandatory precendent in the commonwealth of virginia because those are different issues, and the US supreme court has NOT ruled on SS marriage. His client is the commonwealth. him joining the lawsuit against the commonwealth is an absolute betrayal of his ethical duties as a lawyer. Is the wrong thing to do. This right thing to do is to recuse himself, appoint independent counsel. Not aid the opposition. You get disbarred for betraying your client.

jkld

Again, the precendent has been set and he has the RIGHT to do what he’s doing
And rightfully so.
He’s not betraying his ‘client’ at all.
So, was Loving v. Virginia wrong? After all, Virginia banned interracial marriage. And we know how stupid and ignorant that was, just as banning gay marriage is ignorant AND unconstitutional.

Arlingtonvirginia

Given you couldn’t even use the correct word for your first 10 posts, is it possible you are wrong about other things as well? I’m glad you finally are using the word “precedent” even though you still have no idea what is is given there is no mandatory precendent for the circuit Virginia is in regarding same sex marriage.

jkld

Nope…precedent IS set and he IS in the right. His 2 predecessors exercised the discretion and he also has that right, particularly since the US Constitution comes first and the VA Constitution is 2nd.
BTW why would ANYONE in their right mind oppose SS marriage? The same kind of people who opposed inter-racial marriage or who advocate bigotry?

Arlingtonvirginia

No other AG has actively aided the other side in litigation. Funny how black people often are insulted by the comparison.

jkld

So? Actually other AGs, in other states, have filed amicus briefs in various other cases questioning the constitutionality of a law.
He has the RIGHT to do what he’s doing.
Again, why would ANYONE oppose SS marriage unless they advocate bigotry?

Arlingtonvirginia

You must also be a bigot if you oppose incest and polygamy.

jkld

Incest has a legitimate health/genetical reason for being banned. Polygamy is practiced in numerous cultures.
Again, why would ANYONE object to SS marriage unless they advocate bigotry? Wasn’t it because of bigotry that inter-racial marriage was banned?

Arlingtonvirginia

If they are consenting adults? Who cares? WHo says they have to have kids? And same sex incestuous couples, why would you outlaw it for that reason? By your logic, jews and cajuns could be forbidden from marrying due to the much higher risk of taysachs disease.

jkld

already answered re another of your questions

jkld

The SCOTUS left the door open for SS marriage case under the DOMA ruling. In addition, 14th Amendment is already being applied in numerous states to overturn state bans on SS marriage. Va.’s anti-sodomy law was overturned under the 14th Amendment. The 14th Amendment is being used to overturn other state’s SS marriage bans, OK being the most recent.

Arlingtonvirginia

If you knew anything about law, you’d know that DOMA is factually different than SS marriage let alone sodomy rules, thus you have no point.
Do you support throwing people in jail for polygamy and incestuos relationships in Virginia? Do you believe in marriage equality? Or are you a hypocrite?

jkld

DOMA deal with FEDERAL rights. However the 14th Amendment’s Equal Protection Clause was also used to strike down anti-sodomy laws (aimed DIRECTLY at gays), inter-racial marriage, DOMA, Women’s RIGHT of CHOICE….
Tho the DOMA ruling did not address the states’ banning of SS marriage, it left the door wide open for it to be challenged. The recent ruling in OK by a federal District Court and the ruling in UTAH also cited the 14th Amendment as striking down the SS marriage ban.
Why would ANYONE but a bigot be against SS marriage?
incestuous relationships are banned due to health/genetical reasons. Pologamy? That’sa good question. Why couldn’t a woman have more than 1 husband?

The question before the courts is SS marriage. And Herring has the right to do what he’s doing.

Arlingtonvirginia

What health reasons? If they are consenting adults? So what? What health consequences for same sex incestuous relationships? Should people with genetic defects or high risks for passing them on not be allowed to marry? Or are you just a bigot?

jkld

Actually, in a lot of states, people with genetic defects ARE allowed to marry. As for “incenstuous’ relationships, a lot of states do have varying laws that allow marriage, depending on the degree of relationship, i.e. 1st cousins can marry in a lot of states. Uncle/niece can marry depending on the community they’re in, i.e. Orthodox Jews, where such relationships are permitted (Rhode Island)

Attorney General Catherine Corte Masto filed a motion Monday to withdraw the state’s legal arguments in a case pending before the 9th U.S. Circuit Court of Appeals.

Republican Gov. Brian Sandoval says he agrees with the move, saying it’s clear the state’s arguments supporting the ban are no longer defensible in court.

The decision means Nevada will not argue to uphold the state’s constitutional prohibition against same-sex marriage that voters passed in 2002.

Eight same sex couple sued the state, arguing the law is unconstitutional.

Nevada lawmakers last year took the first step toward repealing that law. If legislators approve Senate Joint Resolution 13 again next year, it would go to voters on the 2016 ballot.

Arlingtonvirginia

I can’t wait for conservatives AGs to do the same and refuse to defend laws that were duly passed that they don’t agree with, and then read your prancing, effeminate whining about it.

jkld

Well, IF the laws are questionable with regards to CONSTITUTIONALITY with the US Constitution, they would have the right to. It’s totally IRRELEVANT as what to the “people” want. If it can’t past the constitutionality test, it’s illegal and invalid. What part of the word “constitutionality” do you NOT understand.
BTW – the 4th Circuit just struck down NC’s refusal to allow pro-choice license plates but ONLY allow anti-abortion ones, saying it was illegal re 1st Amendment’s freedom of speech.
IOW, it didn’t pass the CONSTITUTIONALITY test.
Oh, and btw – I’m female, so your bigoted and ignorant comment is just that – bigoted AND ignorant. Par for the course for your kind. Sad.

Kentucky must recognize same-sex marriages performed in other states, a federal judge ruled on Wednesday, calling part of a state ban unconstitutional for denying gays and lesbians equal protection under the law.

The state’s law banning state marriage, he said, treated “gay and lesbian persons differently in a way that demeans them.”

In a 23-page ruling, U.S. District Judge John G. Heyburn II concluded that the government may define marriage and attach benefits to it, but cannot “impose a traditional or faith-based limitation” without a sufficient justification for it.”

U.S. District Judge Arenda L. Wright Allen’s decision Thursday makes Virginia the second state in the South to have a ban on gay marriages overturned. It comes the day after a similar ruling in Kentucky and following similar rulings in federal courts in Utah and Oklahoma.

Wright stayed her decision until an appeals court rules, meaning that gay couples will not be able to marry in the state immediately.

Arlingtonvirginia

Serial liars can’t be lawyers in California, I’m guessing unless they are a politician. Ironic, CA allowed an illegal alien to be an attorney though.

I see Blue Virginia has done a good job defending Mr. Herring’s actions so far. He should tip them.

jkld

Considering that the Federal Judge just said that the amendment is unconstitutional, he’s most definitely in the right. He didn’t need to be defended anyway. He was doing his job.

DavidH

This is ridiculous. Not only is it completely futile, but it doesn’t even get basic facts or law right. There is no statewide recall in Virginia. And the Virginia Constitution is not “paramount law”.

The bottom line is that this is a basic disagreement about the dual roles of the Attorney General. Yes he heads the office that represents state agencies legally. But he’s not merely a legal advisor like private counsel. He is an independently elected constitutional officer entitled to make his own judgments about how to uphold his oath and discharge his duties. There is, at present, no clear law in Virginia about how to balance those dual roles. (Or federally, or in other states.) In the absence of law resolving that, it’s a political question.

Also, elections have consequences. It was pretty clear before the election to anyone who really cared that Obenshain, unlike Cuccinelli, believed that the AG’s role as counsel trumped — that the AG has an obligation to defend all state laws regardless of his beliefs about them. It was pretty clear before the election that Herring did not agree.

Arlingtonvirginia

As a lawyer, Herring’s ethical obligations are paramount,a nd he betrayed his client. There are ways he could have exercised what he believed to be was constituionally required (which it isn’t, since there is no mandatory precedent here, he’s merely guessing), but he didn’t. He chose to aid the plaintiff. I’m not going to rest till he is disbarred. I will file an ethics complaint every single day. Any other lawyer would be severely punished if not disbarred. Why hold him to a lower standard?

DavidH

Given that the Speaker of the House says there won’t be an impeachment resolution, a lot of this discussion is pointless. But for the sake of the record:

You can say that ethical obligations are “paramount”, but that doesn’t make it so legally. The Rules of Professional Conduct are part of the Rules of the Supreme Court of Virginia. Statutes and constitutional provisions trump rules. Va. Code 8.01-3(D).

As for the rest of your comment, few other lawyers have the dual role that the Attorney General does. And if you want to waste time and resources on frivolous ethics complaints, you go right ahead.

Arlingtonvirginia

I asked the ethics people if the AG specifically is subject to the same rules as private lawyers, they said not only yes, but in addition there are special extra rules for public attorneys. If he felt there was a constitutional argument against him doing his advocacy for his client, there is a proper way of going about getting yourself removed from the representation without actively aiding the plaintiff.

http://www.southsidecentral.com/ Bruce Hedrick

SuperFranticUnproductiveNothingLegislation.

The General Assembly has two months to do a year’s worth of work and 2 delegates are considering wasting that time with this steaming pile of dead on arrival horsecrap? Names. I want names of the two idiots who are considering doing this “for the cause”.

Next, recall? Really? Shaun Kenney, do you really believe a recall movement has any chance of success? Honestly?

To those who doubt that the AG is governed by the same ethical rules as other lawyers, here is my correspondence with the VA state bar, with names edited out. As you can see, he emphatically states that not only do the rules apply, but there are additional ones for public attorneys. I followed it up, and specifically asked whther the AG is covered, and they responded “Yes”. So had he done this to his private sector client, he would be in a world of trouble. Let’s not hold him to a lesser standard:

On Mon, Jan 27, 2014 at 9:27 AM, Ethics Hotline wrote:

The answer is yes, of course, and there are some Rules which have especial significance to public sector attorneys such as Rules of Professional Conduct 1.11 and 3.8.

http://www.vsb.org xVirginia State Bar is a state agency that protects the public by educating and assisting lawyers to practice ethically and competently, and by disciplining those who violate the Supreme Court’s Rules of Professional Conduct, all at no cost to Virginia taxpayers.

Can you please answer me if attorneys employed, or working as elected officials as attorneys are subject to the same ethical rules as private attorneys?

arlingtonvirginia

Arlington, VA

Cesar Licktenstein

clap clap clap

Cesar Licktenstein

Middle to all who do not vote to impeach

Cesar Licktenstein

Our Constitution states the Penis suckers and fudge packers are not marriageable

Cesar Licktenstein

Homo sexuality is being forced on the Virginia Population by Felon Herring.

Cesar Licktenstein

Homo’s can pack fudge, and suck weiners but just do not force it on the rest of the population. Dont talk about it there by possibly incurring a violent reaction. If homo’s want to lead a quite life, then shut up and keep your homo and disease ridden action away from the rest of the normal population that does not want you in our sights or hearing. Just go away, possibly to San Frangomorra

Cesar Licktenstein

Herring who was a senator and voted against fudge packing before, it is postulated, that he has engaged in experimental fudge packing.

Cesar Licktenstein

The bum was only meant for poop to come flying out of. Homo sexual s put their tongues in other homo sexuals bums after they take a powerhouse poop (big and nasty turds come flying out leaving many adverse bacteria and nasty germs). These same home sexuals put their weiners in the other homo sexuals bum and then pull it out with poop on it. They then lick the weiner with the poop and all on it. dirty dirty turd birdies they are. They get poop in their fouth. This is mentally sick. Some even decide to put homosexual turds in their mouth. This is evil. This is clearly against the Virginia Constitution. The United States Supreme court does not have power to change a states Constitution.

Cesar Licktenstein

mark herring is truly the pink flamingo.

Cesar Licktenstein

The pink flamingo is a queer demon that fell out of Lucifer’s arsh hole

Cesar Licktenstein

18.2-361
Crimes against nature; penalty.A. If any person carnally knows in any manner any brute animal, or carnally knows any male or female person by the anus or by or with the mouth, or voluntarily submits to such carnal knowledge, he or she shall be guilty of a Class 6 felony, except as provided in subsection

jkld

Most judges, attorneys, AND juries would have to recuse themselves. You’d be hard pressed to find a straight person who has NOT committed sodomy with their partner (husband/wife/girlfriend/boyfriend).

BTW – sodomy laws were ruled UNCONSTITUTIONAL by the SCOTUS a few years ago. That section you quoted is NO longer valid.

It is not the role of the Virginia AG to determine US constitutionality. That’s the role of the US Supreme Court. Until ruled against by a COMPETENT authority (which Herring is not), or until Virginia voters vote to change the law, it is the role of VA AG to defend what the public has voted for and for which the Governor has signed into law. There is a process for change, and Herring is not in compliance with it. If Herring was going to do this, after a “thorough legal review”, surely he had this in mind well before November 5th 2013. Therefore, he should have come out and announced this as part of his campaign platform. Since he dd not, this amounts to “bait and switch”, and a deception and betrayal of those who voted for him in the belief he would actually carry out his oath of office. Support and encourage others to sign the petition to impeach Herring for malfeasance!!.

Arlingtonvirginia

Apparently the “conservatives” here are resigned to allowing it. If you are a virginia resident, please go to the virginia state bar’s website, or google for their ethics complaint form, and fill out a form. His obligation as an attorney, if he felt he cannot advocate for his client, would be to get himself removed from the case in a way that is least prejudicial to his client, which he did not do, since he’s actively advocating for the plaintiff. Any private lawyer who did that would be lucky to not get disbarred. I have filed an ethics complaint, and they have acknowledged they are looking into it. However if it’s just me doing this, they can ignore doing anything about it. They can’t if there are lots of complaints becuase his ethical violation is obvious.

jkld

This just in –
February 13, 2014
NORFOLK (WRIC) – A federal judge declares Virginia’s ban on same-sex marriage unconstitutional.

U.S. District Judge Arenda L. Wright Allen’s decision Thursday makes Virginia the second state in the South to have a ban on gay marriages overturned. It comes the day after a similar ruling in Kentucky and following similar rulings in federal courts in Utah and Oklahoma.

Wright stayed her decision until an appeals court rules, meaning that gay couples will not be able to marry in the state immediately.

Herring was most definitely in the right.

zke007

Recall might be better….. To recall him you need about 200,000 people to sign up.

Had a food laugh at this. The draft resolution is absurd, it’s incorrect, and it’s clearly nothing more than a political ploy. To say that’s it’s unprecedented that an AG has decided that a law is unconstitutional defies logic and credulity. When just last year the republican AG decided the same thing, that a law passed by the Va legislature and signed by the republican governor was unconstitutional. Former repub AG Kilmore did the sane thing. I wonder where these republican legislatures were then? Also, the oath that the AG takes also states that they must also defend the US Constitution. As see after Windsor, courts with both conservative and liberal judges striking down ban’s on marriage equality time and time again.

Steve

When is a Virginia Government official allowed to enforce his own law, or not and oppose the existing Law of Virginia without being impeached?

JReynolds79

This is a fool’s errand that will come back to haunt anyone who supports it.

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